Decided February 24, 1960.
Insurance — Foreign corporations authorized to do business in Ohio — Merger — Securities deposited with Superintendent of Insurance by constituent company — Section 3929.01, Revised Code — Right of consolidated corporation to withdraw deposit — Sections 3929.07 and 3929.09, Revised Code.
This mandamus proceeding was instituted in this court. It is alleged in the petition that the Orient Insurance Company, a Connecticut corporation, the London Lancashire Indemnity Company of America, a New York corporation, and Safeguard Insurance Company of New York, a New York corporation, entered into a merger agreement wherein the consolidated corporation was the Orient Insurance Company of Connecticut which changed its name to Safeguard Insurance Company, a Connecticut corporation, which is the relator herein. It has made the necessary deposit of securities with the Superintendent of Insurance of Connecticut as required by Section 3929.07, Revised Code, and thereby has qualified to do business in Ohio. By this merger agreement, relator acquired all the assets and assumed all the obligations and liabilities of the constituent corporations.
In compliance with Section 3929.01, Revised Code, the London Lancashire Indemnity Company, one of the constituent corporations, has on deposit with the Superintendent of Insurance of Ohio securities in the amount of $53,000 for the benefit of its policy holders. It has published notice of discontinuance of its business and has filed with respondent affidavits to the effect that its debts and liabilities have been extinguished.
Relator is desirous of securing the return of these securities deposited by the indemnity company and has made a request to withdraw the same, which request the respondent, the Superintendent of Insurance, has refused.
The prayer of the petition is for a writ requiring the respondent to release and surrender such securities to relator.
Respondent filed an answer admitting the merger of the companies, the assumption of all liabilities and obligations of the London Lancashire Indemnity company by relator, the deposit by such indemnity company with respondent of securities in the amount of $53,000 "for the benefit and security of all its policy holders," that the indemnity company has caused to be published notice of its discontinuance of business and has filed affidavits that all its debts and liabilities have been extinguished, and that relator's request for withdrawal of the securities was refused. The answer denies that the liabilities and obligations of the indemnity company, which the deposit of securities was made to secure, have in fact been either paid or estinguished, denies that the assumption of such liabilities and obligations by relator is sufficient in law or in fact to pay or extinguish the same, and "denies each and every allegation in the petition not herein expressly admitted."
Relator filed a demurrer to the answer, on the ground it does not state a defense to the petition.
The case has been submitted on the petition, the answer and the demurrer thereto.
Messrs. Hamilton Kramer, for relator.
Mr. William Saxbe and Mr. Mark McElroy, attorneys general, Mr. Hugh A. Sherer and Mr. Gerald J. Celebrezze, for respondent.
Section 3929.07, Revised Code, requires the Superintendent of Insurance to accept a certificate by the Superintendent of Insurance or other officer of the foreign state in which the insurance company was incorporated that the required deposit exists there. The relator alleges in its petition that such a deposit was made by it. That allegation is denied by respondent in his answer, to which answer relator demurred. Since this deposit by relator in the state in which it was incorporated is a prerequisite to relator's right, under Section 3929.09, Revised Code, to withdraw the securities deposited with respondent, relator must establish such fact before it can properly seek the withdrawal of such securities. The answer, therefore, states a good defense.
The demurrer to the answer is overruled, and, the parties having agreed that the ruling on the demurrer will be dispositive of the case, the writ of mandamus is denied.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and PECK, JJ., concur.